59
Early the following morning, Jake drove downtown dressed in his best navy-blue suit, white shirt, and red power tie. He’d learned the name of the paralegal in charge of the LSR&C documents and looked up the woman’s profile on the law firm’s website. She’d been employed for three years, which meant she wasn’t fresh out of law school, but she wasn’t well seasoned either.
He entered the building and spoke to the receptionist. “Molly Diepenbrock, please. I’m Jake Carter, here to see the LSR&C documents.”
Jake tried to appear casual as the receptionist made the call. He listened carefully to her end of the conversation. “That’s what he said,” the receptionist said twice before hanging up.
Minutes later, a tall, thin woman who looked not much older than Jake stepped off the elevator and introduced herself as Molly Diepenbrock. “What is this about?” she said.
“I need to look through the LSR&C documents,” Jake said. “A criminal matter is being finalized this week, so I’m in a bit of a bind and need to see them today. Would you be able to arrange that?”
Diepenbrock said, “I think so. I just have to find them. I’m preparing for trial myself. You’d want copies today, I assume.”
Jake pounced on this comment, knowing Diepenbrock was under the gun and she’d be grateful if he took one more thing off her plate. “Listen, I know what getting prepared for trial can be like. If you just point me in the direction of the documents, I’ll arrange for a copy service to come in so you’re not put out.”
Diepenbrock smiled. “That would be great. I’d appreciate that.”
Jake followed her to the bank of elevators. He felt like he’d been given the keys to the Louvre and hoped he was about to walk out with the Mona Lisa.
Paper plates, used napkins, and empty cans of soda water littered the conference room table. Sloane, Jake, and Jenkins hadn’t left the conference room since Jake returned with copies of all the LSR&C documents. As Jenkins suspected, there weren’t many—just four bankers boxes. The government had no doubt confiscated the vast majority and, in this day of paperless offices, a large amount likely had only existed on LSR&C’s network server. Still, Jenkins was buoyed by what they had found.
“Listen to this.” Jake sipped his drink then read out loud from a cable sent in 2015 that outlined the CIA’s plan for Goldstone to provide Carl Emerson with a cover. “‘Foreign Resources Division requests Mr. Mitchell Goldstone, chairman of the board of LSR&C, to negotiate cover arrangements for Carl Emerson in the alias of Richard Peterson. Foreign Resources Division believes this proposal is operationally sound and should provide solid cover for extended operational use.’”
He set that down and read from a second document. “‘The cover should permit Mr. Emerson to portray himself as a representative of, or as the senior officer or owner of a substantial investment company in Seattle, Washington.’” He lowered the document and picked up a third, plowing forward.
“And here’s the e-mail to the IRS. ‘Headquarters in Langley has contacted IRS and advised to forgo any investigation of tax matters.’” He set down the document and picked up yet one more. “And here’s another document that provides Goldstone with a cover story. ‘Tell investigators: Established three companies in question for undisclosed foreign clients who needed US government base for certain unspecified business operations. Goldstone is strictly a nominee in all matters and has no financial interest in the entities.’”
Jenkins suspected that Carl Emerson had formed TBT Investments to distance it from LSR&C and any potential investigation by the IRS. It made sense, especially if Emerson was washing funds he’d received from the Russians.
“Why would Goldstone plead guilty with this kind of evidence?” Jake asked.
“Because he wasn’t going to be able to get any of it into evidence,” Sloane said. “The judge ruled in a pre-trial motion that Goldstone’s alleged ties to the CIA were irrelevant to the charges brought against him—that he ran a Ponzi scheme and bilked investors out of their life savings.”
“So how are we going to get it in?” Jenkins asked.
“Your case is different. They’ve alleged espionage, and your entire defense is that you acted at the behest of a senior officer within the CIA. The documents are clearly relevant.”
“Doesn’t mean we’ll get them in, especially if someone in the government gets to the judge,” Jenkins said.
“I’ve thought about that also. We need to turn around Harden’s opinion of you and of the government’s case,” Sloane said. “Harden’s only human. He’ll be upset if he’s convinced you sold secrets to the Russians. We need to find a way to let him know you’re telling the truth and the government’s lying. In my experience, if there’s one thing judges hate, it’s attorneys and witnesses who lie.”
“So how do we do that?” Jenkins asked. “How do we get the government to lie?”
Sloane smiled. “We just get them to move their lips.”
60
The following day, Sloane and Jake filed the defense’s motion to compel production pursuant to federal Rule 16, the evidentiary discovery rule. They’d tailored their request to specifically ask for the documents they already possessed. The rule required the government to produce any within the government’s possession, custody, or control, which would include many of the documents within the four bankers boxes. They further requested the government produce Carl Emerson’s last-known address.
The government’s responsive pleading, filed six days later, predictably denied the existence of any such documents and added, “The government has no intention of participating in, or furthering, Mr. Jenkins’s fantasy.” Despite this response, the government sought to have the motion and the response sealed, and they asked that the hearing be held in the judge’s chambers, or that the courtroom be emptied of spectators, because of what it called the sensitive nature of the requested materials.
Jenkins smiled when he read that sentence calling his request a fantasy and the government’s further response that it had no knowledge of Carl Emerson’s last-known address.
“Maybe they know we have the documents,” Sloane said, with respect to the request to seal the matter. “Or maybe they’re just being cautious.”
The next day Sloane filed a motion to compel, and he requested oral argument. He also opposed the government’s request to close the proceedings. “I want to draw another crowd,” he told Jenkins, “which we can use to hopefully alter the public’s perception of you.”
The following week, Sloane, Jenkins, and Jake appeared in court before Judge Harden, who had granted the government’s request to seal the pleadings and close the hearing to the public. Sloane told Jenkins not to worry, that their foremost intent had been to change Judge Harden’s opinion. As before, the government brought a gaggle of attorneys to stand beside Velasquez.
After Harden took the bench and opened the proceedings, Sloane explained that Jenkins intended to argue that he had been authorized by Carl Emerson—acting for the CIA—to disclose certain information to the Russians as part of a CIA operation. “The documents are therefore critical to my client’s defense, as is Mr. Emerson.”
Jenkins could almost hear the crackle of intensity in the courtroom.
After Sloane’s argument, Velasquez responded in a dismissive tone intended to convey incredulity. “Your Honor, the government is unaware of the existence of any such documents, because the defendant’s supposed defense is a fantasy. The government cannot produce what does not exist. There are no documents relevant to the make-believe theory that Mr. Jenkins was working for the CIA when he traded agency secrets for money. As for Mr. Emerson, he worked with Mr. Jenkins in 1978 in Mexico City.”
Harden looked to Sloane. “Mr. Sloane, the government cannot produce what it doesn’t have.”
“Certainly not,” Sloane said. “But I would ask the court to ask Ms. Velasquez if the government actually searched for the requested documents.”
Harden looked to Vel
asquez. “Counsel?”
Jenkins watched closely. Velasquez sighed. “Your Honor, the defense can’t look for something that doesn’t exist. The defense is pulling rabbits out of its hat and creating a total fabrication to confuse the very simple issue before this court: Did the defendant trade government secrets for money?”
Jenkins suppressed a smile.
Harden again looked to Sloane. “Mr. Sloane?”
Jenkins knew Sloane would push the matter further so Velasquez could not later vacillate.
Sloane did just that. “Your Honor, with all due respect, we can’t tell from the government’s written response, or from the statements made by counsel in court this morning, if the government did not search for the documents, in which case Ms. Velasquez’s response is based on ignorance, or if the government looked, but Ms. Velasquez is deliberately attempting to mislead this court because such documents would reveal damning information that Mr. Jenkins’s ‘fantasy,’ as the government put it, is in fact a reality.”
Velasquez bristled at the accusation, which Jenkins knew Sloane had intended. “Your Honor, I resent the insinuation made by counsel, and I reiterate that the defendant’s argument is a total fabrication. To look for nonexistent documents would be a waste of time and resources, and Mr. Sloane knows this.”
And there it was, Jenkins thought, anticipating what was to come.
Sloane turned to Jake, who provided him with a stack of documents, all date stamped with letters and numbers to show that Sloane possessed the “nonexistent” documents. Jake also provided a memorandum summarizing each request to which the documents specifically related. “Your Honor, if I may approach,” Sloane said.
Harden waved Sloane forward, curiosity creasing his otherwise impassive face. Sloane handed the stack of documents to the clerk, who handed them to the judge. Once they were securely in Harden’s hands, Sloane returned to the counsel table and handed a duplicate set to Velasquez. Jenkins watched her reaction as Sloane continued his attack.
“What the defense has just presented are copies of LSR&C documents that state, very clearly, that LSR&C was a CIA proprietary, that Mitchell Goldstone was working under CIA authority, and that Carl Emerson—whom the government has already acknowledged worked for the CIA, but who has apparently vanished into thin air—was utilizing the alias Richard Peterson to serve as the COO of an LSR&C subsidiary, TBT Investments. We’d simply like to know what additional documents exist.”
Velasquez looked about to explode, but Sloane pressed on before she could interrupt him. “Mr. Jenkins’s security company, CJ Security, provided security for the employees and the clients of LSR&C in offices all over the world, and it was to be paid to provide those services by LSR&C—aka the CIA.”
“Objection, Your Honor,” Velasquez said. Red in the face, she clearly struggled to control the volume of her voice. “Those documents are classified.”
“Your Honor, would those documents that the government now claims to be classified be the same ‘fantasy’ documents the government contends don’t exist?” Sloane asked. “Because I don’t believe the government can move to classify documents that don’t exist. That would be a ‘total fabrication,’ wouldn’t it?”
“Enough,” Harden said in a soft but bemused tone. He went through the documents for several minutes before setting them down. He took another minute. When he spoke his voice was calm, but stern, like a father talking to a child who had broken curfew. “Ms. Velasquez, earlier I asked you a direct question, whether you had looked for the documents requested by the defense.”
“Your Honor—”
“It’s a simple question, Counselor,” Harden said, raising his voice to speak over her. “Did the government look for these documents?”
“No. The government did not. Might I add, Your Honor, that the government has no control over LSR&C’s documents and therefore—”
Harden smiled, clearly having anticipated the argument. He shook his head as he interrupted her. “No. No. No. Ms. Velasquez. I’m looking at documents that originated from the CIA and from other government offices. Mr. Sloane, are there additional responsive documents?”
“There are, Your Honor.”
“Please present them to the court.”
Sloane directed Jake to present the four bankers boxes.
Harden clenched his jaw. “I will review the documents in camera and make three determinations. First, whether the documents are responsive and relevant to the requests. Second, whether the government has willfully withheld relevant documents and lied to this court, and, third, whether these documents are admissible in the defendant’s upcoming trial. Anything else, Mr. Sloane?”
With a clear change in Harden’s attitude, Sloane remained on the attack. “Yes, Your Honor. The defense requests the government be compelled to provide Carl Emerson’s last-known address, as well as the date he retired from the Central Intelligence Agency, along with relevant documents.”
Velasquez said, “Your Honor, the government can’t produce what it doesn’t have.”
Harden scoffed. “Look a little harder, Counselor. Maybe you’ll find that information in the same location you would have found these documents. When you do, I’m ordering you to provide the last-known address to defense counsel. Counsel will have my written ruling this afternoon.” He rapped his gavel once. “We’re adjourned.”
Jenkins returned to Sloane’s office buoyed by their victory, despite Sloane cautioning him and Jake not to get too excited. “This is going to be a marathon, not a sprint,” Sloane said. “We can celebrate when we cross the finish line.”
As the day came to a close, Carolyn walked into the conference room holding copies of a document. “Hot off the judicial presses,” she said, handing them the document and then departing.
Harden had considered all of the LSR&C documents thoroughly and ruled that Jenkins’s stated defense—that he had a reasonable belief that a CIA agent had authorized him to reveal information—mandated that the documents be produced as relevant.
Jake said, “It’s a whole new ball game.”
“Yeah, well, don’t get picked off first base just yet,” Sloane said. “The government isn’t going to let this go without a fight.”
No sooner had Sloane spoken than Carolyn walked in carrying another document. “Don’t they sleep over there?” She looked at Jenkins. “Whatever you did, you’ve accomplished the impossible. You’ve actually motivated government workers to work.”
Sloane and Jake quickly flipped through the pages of the pleading as Jenkins stood looking over their shoulders. “They’re arguing that under the Classified Information Procedures Act, or CIPA, the government has the right to classify the documents as a danger to national security and prevent them from coming into evidence, even if those documents would substantiate our defense,” Jake said.
“There’s no way they prepared this motion this quickly,” Sloane said. “There’s a lot of boilerplate codes and case law they could have pulled from motions filed in the Goldstone matter, but there are also specifics related to this case and to the particular documents the government seeks to have classified. They had to have had this motion ready to go, which means they anticipated this ruling. Harden will know that, and hopefully it will piss him off even more.”
“But can they do this?” Jenkins asked, feeling suddenly deflated. “Can they exclude the documents?”
“Harden doesn’t think so. You can tell from his decision. It’s clear he wrote it anticipating the government would appeal and likely argue CIPA. Look on the third page. He says a criminal defendant has a constitutional right to insist that the government prove his guilt beyond a reasonable doubt. Harden says excluding documents as classified would, in effect, deny you the right to a trial because it would prevent you from putting on a defense.”
“He’s given us a road map to prepare an opposition to the court of appeals,” Jake said.
Sloane looked to Jenkins. “The important thing is he knows what’s in those d
ocuments, and Judge Harden now knows you’re telling the truth.”
Jenkins wasn’t so confident.
“The trial date is going to have to be vacated until after the appeal,” Jake said.
“Do you think they’ll make another plea offer?” Jenkins asked. He wanted to be found innocent, but he wasn’t adverse to a quick resolution—for Alex and his children’s sake, so long as he didn’t have to admit guilt.
“They might,” Sloane said. “Especially if they lose the appeal.”
Near six o’clock, after further discussion, Jenkins said, “I better get home and give Alex a break. Call me if you need anything.”
Jenkins grabbed his jacket and walked to the door. The phone in the center of the conference room table rang. Since the receptionist had left for the evening, Sloane had forwarded his calls to the conference room. The lights on the telephone console indicated the call was from outside the firm, but when Sloane answered, the telephone number did not register on the small screen.
He hit the “Speaker” button. “Law offices of David Sloane.”
“David Sloane?” The caller’s accent stopped Jenkins’s retreat. He turned to the phone as if hearing a ghost.
“Yes,” Sloane said.
“Good. Mr. Sloane, my name is Viktor Federov. Your client Charles Jenkins is well familiar with me.”
Sloane looked to Jenkins. He nodded, returned to the table, and sat down.
“You have placed me on the speakerphone,” Federov said. “May I presume that Mr. Jenkins is there with you now?”
“I’m here, Viktor,” Jenkins said.
“Mr. Jenkins. How are you?” Federov asked the question as if they were two old friends getting reacquainted.
“I’ve been better, Viktor.”
“Yes, I have been reading with great interest of your arrest and pending trial. In Russia, we are not so fortunate. My failure was viewed as an embarrassment to the government and I was summarily dismissed.”
The Eighth Sister Page 31
